United States of America v. Kevin Rucker

NOT PRECEDENTIAL - REPORTED
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3742
UNITED STATES OF AMERICA
v.
KEVIN RUCKER,
Appellant
Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Criminal Action No. 01-cr-00062)
District Judge: Honorable Donald E. Ziegler
Submitted Under Third Circuit LAR 34.1(a)
November 20, 2002
Before: BARRY and AM BRO, Circuit Judges
ACKERM AN*, District Judge
(Opinion filed November 27, 2002 )
OPINION
*Honorable Harold A. Ackerman, United States District Judge for the District of
New Jersey, sitting by designation.

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AM BRO, Circuit Judge
I. Background
Appellant Kevin Rucker, a previously convicted felon, was arrested on December
26, 2000, after a traffic stop. He subsequently pleaded guilty to possession of a firearm in
violation of 18 U.S.C. § 922(g)(1). The Pre-Sentence Investigation Report recommended
a two-level sentence enhancement under § 2K2.1(b)(4) of the U.S. Sentencing Guidelines
(“U.S.S.G”) because the gun found in Rucker’s automobile at the time of his arrest was
stolen. At Rucker’s sentencing hearing, the Government offered an April 13, 1992
Wilkinsburg, Pennsylvania police report showing that a handgun of the same make,
model, and serial number as the gun in Rucker’s possession at the time of his arrest had
been stolen from Braverman’s Gun Shop. Rucker offered no evidence or testimony to
rebut the police report. Rather, he argued that a § 2K2.1(b)(4) enhancement was not
supported by a preponderance of the evidence because the Government failed to establish
that the gun was not returned to Braverman’s Gun Shop after the 1992 theft. Therefore,
according to Rucker, the Government failed to prove that the gun was stolen at the time
of Rucker’s arrest.
II. Jurisdiction and Standard of Review
The District Court had jurisdiction under 18 U.S.C. § 3231. We exercise
jurisdiction pursuant to 18 U.S.C. § 3742 and 28 U.S.C. § 1291.
At sentencing, the Government was required “to prove by a preponderance of the

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evidence the facts in support of a sentence enhancement . . . .” United States v. Evans,
155 F.3d 245, 253 (3d Cir. 1998). On appeal, this Court reviews the District Court’s
factual determination whether the gun was stolen for clear error. United States v. Katora,
981 F.2d 1398, 1401 (3d Cir. 1992).
III. Discussion
U.S.S.G. § 2K2.1(b)(4) mandates a two-level sentence enhancement if any firearm
in the offense charged has been stolen. The adjustment is based on strict liability. The
defendant need not have stolen the weapon or even know or have reason to know that it
was stolen. U.S.S.G. § 2K2.1(b)(4) cmt. n.19.
In this case, the Government produced a police report to prove that the gun in
Rucker’s possession was stolen. Having made out a prima facie case, “the burden of
production shift[ed] to the defendant . . . to come forward with evidence tending to cast
doubt on the Government’s evidence.” Evans, 155 F.3d at 253. Rucker failed to produce
that evidence. He merely criticized the Government for failing to conduct a follow-up
investigation to determine whether the stolen gun had ever been returned to Braverman’s
Gun Shop. The Tenth Circuit has held, albeit in an unpublished opinion, that a police
report is sufficient evidence that a gun was stolen for purposes of a § 2K2.1(b)(4)
sentence enhancement. See United States v. Wilson, No. 97-8024, 1997 WL 784818, at
*5-*6 (10th Cir. Dec. 22, 1997); see also United States v. Polson, 285 F.3d 563, 567 (7th
Cir. 2002) (“[W]hen the evidence submitted by the prosecution at trial contains ‘sufficient

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indicia of reliability,’ the defendant must come forward with some evidence other than an
unsupported denial to establish its inaccuracy.”); United States v. Washington, 146 F.3d
219, 222 (4th Cir. 1998) (rejecting the defendant’s attempt “to raise a host of potential
shortfalls [in a report that served as a basis for his sentence] that he cannot prove”
because the defendant “fail[ed] to articulate a single concrete challenge”). Because
Rucker produced no contrary evidence, we cannot say that the District Court committed
clear error in finding that the Government had established, by a preponderance of the
evidence, that the gun in Rucker’s possession was stolen. Accordingly, we affirm.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/Thomas L. Ambro
Circuit Judge

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